Hamilton Mutual Insurance Co. v. Genesee Pediatric, P.C.

OPINION AND ORDER DECLINING TO EXERCISE DISCRETIONARY
JURISDICTION AND DISMISSING ACTION WITHOUT PREJUDICE

GERSHWIN A. DRAIN United States District Judge

I.
INTRODUCTION

On
October 23, 2016, Plaintiff Hamilton Mutual Insurance Company
(“Hamilton”) filed a Complaint against Defendants
Genesee Pediatric, P.C. (“Genesee Pediatric”),
and Jillian Donnert, as Personal Representative of the Estate
of Lillian Love Ballard, seeking a declaratory judgment from
this Court that Hamilton has no duty to defend and indemnify
Genesee Pediatric and any of its employees in a lawsuit that
Donnert filed on March 23, 2016, in the Genesee County
Circuit Court.

This
Court has discretion whether to exercise jurisdiction in
declaratory judgment actions. Because Hamilton failed to
address all of the relevant factors this Court must consider
in the exercise of that discretion, the Court ordered
Hamilton to show cause why this case should not be dismissed.
Hamilton filed its Response to the show cause order, which is
now before the Court.

II.
FACTUAL BACKGROUND

Hamilton
is an Iowa corporation that insured Genesee Pediatric under a
business owner's liability insurance policy. The
insurance policy under which Hamilton insured Genesee
Pediatric states that Hamilton will pay those sums that an
insured is legally obligated to pay because of “bodily
injury” caused by an “occurrence” which
takes place during the policy period. Hamilton is currently
defending Genesee Pediatric in state court litigation
stemming from the death of Donnert's daughter, Lillian,
after she brought Lillian to a scheduled appointment at
Genesee Pediatric on March 27, 2013.

Specifically,
the state court complaint alleges that on March 26, 2013,
Donnert took Lillian to Genesee Pediatric with complaints of
respiratory distress caused by worsening asthma symptoms. On
previous office visits, Dr. Manar Abed Hammoud, as well as
the staff at Genesee Pediatric had been informed that, in
addition to asthma, eczema and seasonal allergies, Lillian
suffered from severe allergies to several food products,
including milk, peanuts, tree nuts and pork. This critical
information was documented throughout the records at Genesee
Pediatric. Because Lillian vomited in the office, her
appointment was rescheduled for the following day.

Donnert
brought Lillian in on March 27, 2013. Her respiratory
symptoms were worse than the previous day. When Donnert
arrived, she was informed that Dr. Hammoud had not yet
arrived at the office. She informed the staff that she wanted
to take her daughter directly to the hospital, but they asked
her to wait so they could contact the doctor to get his input
and recommendation. The staff inquired if Lillian had eaten
anything that day. Donnert informed them that she had only
consumed half a cup of orange juice. One of the staff members
gave Lillian something to drink, which appeared to be juice.
After drinking about half of it, Lillian began to vomit. She
complained that her tongue was burning. When she started to
turn blue, Donnert began screaming for help. She realized
that her daughter was possibly experiencing anaphylaxis and
asked the nurses on staff if she could medicate her daughter
with the EpiPen, an injectable cartridge of Epinephrine
designed for use in situations of anaphylaxis. The nurses
refused Donnert's request.

Lillian
was eventually taken by ambulance to the Hurley Medical
Center, where she was placed on a ventilator until March 29,
2013, when her organs were harvested and life-saving support
removed. An autopsy was performed by the Genesee County
Medical Examiner who reported that Lillian died of an
“anaphylactic reaction due to the ingestion of a
product containing milk in the setting of a previously
documented milk allergy.” The juice drink given to
Lillian by the staff at Genesee Pediatric apparently
contained milk or other food products to which Lillian was
allergic. Donnert brings the following claims in the state
court action: (1) medical negligence against Hammoud, (2)
negligence against the nurses and medical assistants employed
at Genesee Pediatric, (3) negligence against the office staff
at Genesee Pediatric, and (4) medical negligence of Genesee
Pediatric.

In the
instant matter, Hamilton requests a declaratory judgment that
it has no duty under the business owner's liability
insurance policy to defend or indemnify Genesee Pediatric or
its employees in the state action filed by Donnert. Hamilton
specifically relies on certain exclusions from coverage under
the subject policy, which state in relevant part:

B.
Exclusions

1.
Applicable to Business Liability Coverage This insurance does
not apply to:

* * *

j. Professional ...

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